Archived Terms of Service from May 8, 2020
This is an archived document. View most recent.
Last modified: May 8, 2020.
Welcome to Podhero!
Thanks for using our podcast application and other products and services (collectively, the “Services”). Our Services are provided by Podhero, Inc., a Delaware corporation formerly known as (fka) Swoot, Inc. (“Podhero”), located at 2140 Elizabeth St, San Carlos, CA, United States.
By using our Services, you are agreeing to these terms of service (which we refer to as the "Terms"). Please read them carefully.
Please be aware that we may add other features to our Services, so sometimes additional terms or product requirements (including age requirements) will apply. Additional terms will be available with the relevant Services, and those additional terms will become part of your agreement with us, along with these Terms, if you use those Services.
These Terms are between you and Podhero, and not with any External Service (as defined in Section 3). These Terms do not modify any terms or conditions to which you are subject with any External Service. Notwithstanding the foregoing, the External Services, and their respective subsidiaries, are third party beneficiaries of these Terms and, upon your agreement to these Terms by using our Services as described above, the External Services will have the right (and be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
Using our Services
You must follow any rules and policies made available to you within the Services. We ask in particular for you to be aware of the following:
Don’t misuse our Services. For example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law. Do not use our Services to post or send (i) unwanted promotional or commercial content; (ii) false or misleading content; (iii) hate speech; (iv) depictions of violence, bullying, harassment or illegal activity; (v) sexually explicit or pornographic materials; (vi) intellectual property that isn’t yours; or (vii) anything else that is offensive or objectionable. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Services. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.
Our Services includes access to podcasts and other content that is not Podhero’s. This content is the sole responsibility of the person or entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to provide content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
Our Services are generally available on mobile devices. Do not use those Services in a way that distracts you or prevents you from obeying traffic or safety laws.
As a condition to accessing and using our Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You are solely responsible for your compliance with applicable third party terms of agreement when using our Services, e.g., you are responsible for compliance with the terms of your wireless service provider.
Your Podhero Account and Subscription
You need to create an account with us (which we refer to as your Podhero “Account”) and purchase a subscription (“Subscription”) in order to use our subscription products or Services (“Subscription Services”). These are the terms and conditions that govern Accounts, Subscriptions and Subscription Services. By purchasing, accessing and/or using a Subscription Service, you agree to be bound by these terms and conditions:
You may create your own Podhero Account, or your Podhero Account may be assigned to you by an administrator, such as your employer or educational institution. If you are using a Podhero Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account.
To be eligible to access and use the Subscription Services, you must meet the following criteria: (i) you must be at least 18 years of age or the age of legal majority in your jurisdiction, and capable of entering into a binding agreement; (ii) you must have an Account in good standing, which includes the payment of all Fees and any applicable taxes; and (iii) you must meet any additional qualifications or adhere to any limitations disclosed with the offer relating to the Subscription Service, if applicable.
We may require passwords to protect your Podhero Account. If we do, please keep your password confidential. You are responsible for the activity that happens on or through your Podhero Account. Try not to reuse your Podhero Account password on third-party applications. If you learn of any unauthorized use of your password or Podhero Account, follow the instructions to change your password.
Subject to your compliance with these Terms, Podero hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access the Subscription Services in jurisdictions in which Podhero is lawfully available, and otherwise access and use the Subscription Services to the extent permitted by its intended functionality for your personal, non- commercial use, and not for the sublicense to or use by third parties.
You may purchase a Subscription to the Subscription Services for a fee (the "Fee") for the period of time (the "Access Period") you have elected from the available options (e.g., monthly or annually). The Fee is exclusive of any applicable federal, state, telecommunications, excise, or municipal taxes or duties, including VAT and GST, unless otherwise specified.
Your ability to access and use the Subscription Service commences on the date we make the Subscription Services available to you following your purchase of a Subscription Service and remittance of the Fee and applicable taxes, if any, and continues until the end of the applicable Access Period. Podhero will automatically renew or commence your Subscription for a new Access Period by charging the associated Fee plus any applicable taxes to the payment method you provided unless you cancel your Subscription as provided below. Unless you affirmatively opt-out of automatic renewal either prior to the expiration of a Subscription Product or before the end of the then-current Access Period (as applicable), you hereby authorize Podhero to renew or commence your Subscription automatically at the end of each Access Period or at the expiration of your Subscription Product for a new Access Period. If you opt-out of automatic renewal, your Subscription Product will expire and your access to the Subscription Services will cease at the end of its specified Access Period. In order to continue to access the Subscription Services after your Access Period has expired, you will need to purchase a new Subscription. You are required to maintain accurate and up-to-date payment information. Podhero assumes no responsibility or liability if your Subscription fails to renew or otherwise expires because of outdated or incorrect payment information.
If you purchase a Subscription through an external service (e.g., Apple, Google, Amazon, etc.) (each, an "External Service"), you must maintain accurate and up-to-date payment information with that External Service in order to continue to access the Subscription Services. If you elect to purchase a Subscription directly from Podhero and you previously purchased a Subscription from an External Service, it is your responsibility to cancel your Subscription managed by that External Service in order to avoid duplicate charges. As disclosed above, purchase of a Subscription is final and non- refundable except where the law requires us to provide a refund, although the refund policy offered by External Services may differ. Please refer to the External Service through which you purchased a Subscription for more details.
Podhero reserves the right to modify, offer additional, or cease offering Subscription Services at any time in its sole discretion, including but not limited to changes in Fees, modifying the availability of and eligibility requirements for certain Subscription Services, or modifying the features and functionality of certain Subscription Services. We will provide you with 30 days prior notice via email before changes in Fees take effect. Any changes to Fees will be effective upon your next billing cycle, and will not apply retroactively or to the remainder of your current Access Period. In the event we do modify your current Access Period or Fee, you may opt-out of these changes by disabling auto renewal of your Subscription, or cancelling your Subscription.
Privacy and Copyright Protection
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.
We provide information to help copyright holders manage their intellectual property online. If you think somebody is violating your copyrights and want to notify us, please contact us by emailing email@example.com. There may be legal consequences for sending a false or frivolous takedown notice. Before sending a takedown request, you must consider legal uses such as fair use and licensed uses.
Your Content in our Services
Some of our Services may allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.
When you upload, submit, store, send or receive content to or through our Services, you give Podhero (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services. Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
As we further develop our Services, we may adopt automated systems which analyze your content (including messages) to provide you personally relevant product features, such as customized search results. This analysis occurs as the content is sent, received, and when it is stored.
If you have a Podhero Account, we may display your profile name, profile photo, and actions you take on Podhero or on third-party applications connected to your Podhero Account (such as reviews you write and comments you post) in our Services. In the future this could include displaying in ads and other commercial contexts. We will respect the choices you make to limit sharing or visibility settings in your Podhero Account.
OUR PODCASTS PROVIDE MANY FORMS OF CONTENT, SOME OF WHICH YOU MAY CONSIDER INAPPROPRIATE FOR THOSE UNDER THE AGE OF 18. THIS CONTENT MAY CONTAIN SPEECH OR OTHER MEDIA THAT INCLUDES STRONG LANGUAGE, OR DEPICTIONS OF VIOLENCE, SEX, OR SUBSTANCE ABUSE. PARENTAL DISCRETION IS ADVISED FOR ALL USERS OF THE SERVICES UNDER THE AGE OF 18.
About Software in our Services
When a Service requires or includes downloadable software, this software may update automatically on your device once a new version or feature is available. Some Services may let you adjust your automatic update settings.
Podhero gives you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the software provided to you by Podhero as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Podhero, in the manner permitted by these Terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.
Open source software is important to us. Some software used in our Services may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these Terms.
As between you and Podhero, you acknowledge that Podhero retains all rights, title, and interest in and to all copyrights, trademarks, trade secrets, patents, and any other proprietary rights in the Services, the software and application programming interfaces (APIs) comprising the Services, and all content therein. Podhero, its logo, as well as certain other Podhero trademarks, service marks, graphics, and logos, are the registered trademarks or trademarks of Podhero. The Services may also contain third-party trademarks, service marks, graphics, and logos. The Services are owned and/or licensed by Podhero and are protected by the laws of the United States and other countries in which the Services are made available. You agree to prevent any unauthorized copying, use, or distribution of the Services. Except as expressly provided herein, Podhero does not grant any express or implied right to you under any Podhero-owned or licensed copyrights, trademarks, trade secrets, patents, or other proprietary rights.
Podhero is fortunate to have a vibrant and active user community that shares our passion for innovation, and our drive to constantly improve our Services. While our employees continually strive to develop and evaluate our own ideas, we pride ourselves on paying close attention to the feedback, comments, and suggestions we receive from our listeners. By submitting any ideas, feedback and/or proposals to Podhero regarding the Services (“Feedback”), you expressly acknowledge and agree that: (a) Podhero is not under any obligation to you, including any obligation of payment of compensation or confidentiality, with respect to the Feedback; and (b) Podhero may freely use, assign, transfer, distribute, exploit, and further develop and modify the Feedback for any purpose. To the extent any copyright or other intellectual property ownership interest vests in you with respect to the Feedback, you hereby grant Podhero a worldwide, non-exclusive, royalty-free, fully paid up, irrevocable, sublicensable, and perpetual right and license to make, use, copy, sell, distribute, otherwise exploit, and create derivative works of the Feedback. Further, you irrevocably release Podhero from any and all liability and claims that may result from or are related to the rights to the Feedback.
Modifying and Terminating our Services
We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
You can stop using our Services at any time, although we’ll be sorry to see you go. Podhero may also stop providing Services to you, or add or create new limits to our Services at any time, subject to our obligations with respect to Subscriptions.
Support, Feature Availability, Fraud and Abuse
Podhero is not obligated to provide technical support under these Terms, and provides no assurance that any specific errors or discrepancies in the Services will be corrected. Podhero may alter the availability of any feature of the Services, or impose new limitations on your use of the Services, at any time with or without notice, liability, or obligation with respect to such feature or limitation. In certain circumstances, such as in the case of a security problem, we may require you to install an update in order to continue using the Services. In order to provide the best quality Services to all of our users, we monitor the Services to detect and prevent fraud and abuse. We may, in our sole discretion, terminate your account and your access to the Services should we determine it is associated with fraudulent or abusive activities as it relates to the Services. Further, we reserve the right to pursue legal action in connection with fraudulent or abusive activities.
No External Service has any obligation whatsoever to furnish any maintenance and support services with respect to the Services.
When using the Services, we may permit you to store data, preferences set by you, content or other information for your convenience, but we are under no obligation to retain any such data, preferences, content or other information that you may have stored and will not be liable for the deletion of any such information.
Our Warranties and Disclaimers
We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services.
In the event of any third party claim that the Services or your possession and use of the Services infringes that third party’s intellectual property rights, Podhero, and not any External Service, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ANY APPLICABLE ADDITIONAL TERMS, NEITHER PODHERO NOR ITS SUPPLIERS OR DISTRIBUTORS, INCLUDING EXTERNAL SERVICES, MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.
Liability for our Services
WHEN PERMITTED BY LAW, PODHERO, AND PODHERO’S SUPPLIERS AND DISTRIBUTORS, INCLUDING EXTERNAL SERVICES, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, PODHERO'S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE SERVICES WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAID FOR THE APPLICABLE PORTION OF THE SERVICES AT ISSUE WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL PODHERO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF PODHERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
IN ALL CASES, PODHERO, AND ITS SUPPLIERS AND DISTRIBUTORS, INCLUDING EXTERNAL SERVICES, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
Business Uses of our Services
If you are using our Services on behalf of a business, that business accepts these Terms. It will hold harmless and indemnify Podhero and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these Terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
About these Terms
We may modify these Terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the Terms regularly. We’ll post notice of modifications to these Terms on this page. We’ll post notice of modified additional Terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified Terms for a Service, you should discontinue your use of that Service.
If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
These Terms control the relationship between Podhero and you. They do not create any third party beneficiary rights.
If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
If it turns out that a particular term is not enforceable, this will not affect any other terms.
The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these Terms or the Services. All claims arising out of or relating to these Terms or the Services will be litigated exclusively in the federal or state courts located in San Francisco, California, USA, and you and Podhero consent to personal jurisdiction in those courts.
If you have any questions or suggestions about these Terms, do not hesitate to firstname.lastname@example.org.